Kiaget Davis v. State of Indiana (mem. dec.)

MEMORANDUM DECISION FILED
Jun 23 2016, 8:11 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Barbara J. Simmons Gregory F. Zoeller
Oldenburg, Indiana Attorney General of Indiana
Katherine Modesitt Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kiaget Davis, June 23, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1510-CR-1668
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Linda Brown,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G10-1412-CM-53583
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1668 | June 23, 2016 Page 1 of 5
[1] Following a bench trial, Kiaget Davis was found guilty of one count of theft as
a Class A misdemeanor. Davis appeals, arguing that the State’s evidence was
insufficient to support her conviction.
[2] We affirm.
Facts & Procedural History
[3] On December 2, 2014, Jovanny Fernandez was working as an associate in the
loss prevention office of the Walmart located on Lafayette Road in Marion
County. Through video surveillance, Fernandez watched Davis select
merchandise off the shelf in the Health and Beauty section and then walk
straight to self-checkout register forty-seven located at the south end of the
store.
[4] Fernandez observed Davis as she concealed two cosmetic items, without
scanning or paying for them, in a Walmart bag she picked up next to the
register. Davis then attempted to scan other items she had in her hand, but was
unsuccessful. She called for an associate to help her and the associate
proceeded to scan the items, but not the cosmetic items that were in the
Walmart bag. Once finished with the transaction, Davis took the purchased
and unpurchased items and walked toward the exit. When Davis passed the
last point of sale, an officer stopped her and escorted her to an office where they
were joined by Fernandez.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1668 | June 23, 2016 Page 2 of 5
[5] Upon a search of her person, the officer found two more cosmetic items in
Davis’s jacket sleeve. Davis stated that she purchased the cosmetics from a
different Walmart located on 86th Street in Marion County. Fernandez
attempted to verify the date Davis said the transaction transpired at the 86th
Street Walmart, but was unsuccessful. Davis also stated that she may have
purchased the cosmetics at Target. However, Fernandez was able to verify that
the cosmetics came from Walmart—and not Target—when he scanned the
Universal Product Code (UPC) on each item and obtained pricing information.
Fernandez testified that each store has a different UPC and “when [Walmart]
scan[s] an item from Target, [Walmart] [is] [not] going to have the price of the
[Target] item.” Transcript at 24.
[6] On December 2, 2014, the State charged Davis with Class A misdemeanor
theft. On September 29, 2015, a bench trial was held and the trial court found
Davis guilty of one count of theft as a Class A misdemeanor. That same day,
the trial court imposed a sentence of three hundred sixty-five days with three
hundred sixty-one days suspended and credit for two days served. Davis now
appeals.
Discussion & Decision
[7] Davis argues that the State presented insufficient evidence to support the
conviction for Class A misdemeanor theft. When reviewing the sufficiency of
the evidence to support a criminal conviction, the reviewing court will
“consider only the probative evidence and reasonable inferences supporting the
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1668 | June 23, 2016 Page 3 of 5
conviction” and will not “reweigh the evidence nor assess witness credibility.”
Holloway v. State, 983 N.E.2d 1175, 1177 (Ind. Ct. App. 2013). The reviewing
court will affirm the conviction “unless no reasonable fact-finder could
conclude the elements of the crime were proven beyond a reasonable doubt.”
Id. Further, a conviction of Class A misdemeanor theft may be sustained by
circumstantial evidence alone “if the circumstantial evidence supports a
reasonable inference of guilt.” Hayworth v. State, 798 N.E.2d 503, 507 (Ind. Ct.
App. 2003).
[8] To sustain a conviction of theft as a Class A misdemeanor the State was
required to prove that Davis “knowingly or intentionally exert[ed] unauthorized
control over property of [Walmart], with intent to deprive . . . [Walmart] of any
part of its value or use.” See Ind. Code § 35-43-4-2(a). To “exert control over
property” means to “obtain, take, carry, drive, lead away, conceal, abandon,
sell, convey, encumber, or possess property, or to secure, transfer, or extend a
right to property.” I.C. § 35-43-4-1(a). Davis’s “control over property . . . is
unauthorized” if it was “without . . . [Walmart’s] consent[.]” See I.C. § 35-43-4-
1-(b)(1).
[9] On appeal, Davis asserts that there is a reasonable doubt that she intended to
exert unauthorized control over Walmart’s property. She essentially asks us to
reweigh the evidence by arguing that it is plausible for her to have believed that
she paid for all the items she had with her at the self-checkout and purchased
the cosmetic items found in her jacket sleeve at another store.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1668 | June 23, 2016 Page 4 of 5
[10] Fernandez was an eyewitness through video surveillance to Davis’s activities
inside Walmart. He saw Davis take items off the shelf in the Health and Beauty
section, conceal two cosmetics in a bag before paying for the other items, and
then attempt to leave the store without paying for all the items. After Davis had
passed the last point of sale, she was detained and additional items belonging to
Walmart were found in her jacket sleeve. Additionally, Fernandez was able to
verify through the UPC scanner that the cosmetics in Davis’s jacket sleeve came
from Walmart and not Target.
[11] From this evidence, a reasonable inference can be drawn that Davis intended to
exert unauthorized control over Walmart’s property. We reject Davis’s
invitation to reweigh the evidence or assess witness credibility. We therefore
conclude that there was sufficient evidence to support Davis’s conviction for
Class A misdemeanor theft.
[12] Judgment affirmed.
[13] Bailey, J. and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1668 | June 23, 2016 Page 5 of 5